BOVARD tI. THE MAYFLOWER.
not strictly mariners or seamen, may all sue for their wages in the admiralty because they contribute in their several ways to the preservation and support, of the vessel and her crew." The Farmer, Gilp. 53!. The charge for services in the steamer cannot be in this court. It does not spring from a maritime contract. A shipbroker cannot sue in admiralty for services in procuring a charter-party, as they do not arise out of a maritime contract. The Thames, 10 Feri. Rep. 848. Nor do the services of an agent in soliciting freight come within this category. The Crystal Stream, 25 Fed. Rep. 575. Nor is a contract for building a ship, (Cunningham v. Hall, 1 Cliff. 43,) nor for furnishing materials for building a ship, (The Orpheus, 2 Cliff. 29,) a maritime contract. The underlying principle is this: All these are preliminary services leading to a maritime contract. They do not constitute in themselves a maritime contract. Of the same character is the purchase of a vessel. See Edwards v. Elliott, 21 Wall ..532. The service in the purchase of the steamer in this case was not a maritime contract. The claim tor advances made to the master and steamer do not come within our jurisdiction. "Admiralty has no jurisdiction over an account between the agent of a steam-boat and its owners for moneys paid for its use." Minturn v. Maynard, 17 How. 477; White v. Dollars, 19 Fed. Rep. 848; Hen. Adm. p. 135, § 47; Bank v. The Charles E. Page, (MS. Cir. Ct. South Carolina, Dec. 1886.) The same conclusion must be reached with rpgard to the claim for servi es in coming on the steamer from New York. Hewas not master, pilot, otlicer, engineer, fireman, or one of the crew. He only stood tor the owner,-a privileged passenger. His service was not in its nature maritime, did not relate to maritime affairs, had no connection with the navigation of the steamer, nor with her equipment or preservation or with the maintenance or preservation of thE' crew. The libel is digmissed for want of jurisdiction. No decree can be made as to costs. Railway Co. v. Swan, 111 U S. 3lS7, 4 Sup. Ct. Rep. 510; Blacklockv. Small, 127 U. S. 105,8 Snp. Ct. Rep.1096 t Mayor v. Cooper, 6 Wall. 2.50. Each party is responsible to the officers. of tbe court for costs incurred at his instance.
et dl. v.
D. Pennsylvania. June 1, 1889.)
MARITTME LIENS-SUPPLIES FOR RESTAURANT ON BOAT.
Under the Pennsvlvania act giving liens against domestic vessels navigating the rivers Allegheny. Monongahela. or Ohio, a lien exists for supplies furnished to an excursion boat. and dispensed to passengers from a lunch·· counter kept on board the boat. such supplies having been furnished upon the credit of the boat on the order of the master, a part owner.
Debts thus contracted for soda-water, cider, and spirituous and malt liquors, supplied to the boat and dispensed thereon to passengers, are liens under the act.
The lien for a debt thUIl contracted for provisions supplied to the boat, is not affected by a private agreement between the owners the boat and the person in charge of the lunch-counter, unknown to lien claimant.
In Admiralty. Sur exceptions to the report of the commissioner distributing the fund in the registry of the court. , E. P. &; ( W. Jones, for Wilsall, Bailey & Co. A. Y. Smitn, for J. C. Buffum. Knox &; Reed, (E. W. Smith, of counsel,) for W. H. Holmes & Son. J. Cha,s. Dicken, for G. S. Martin & Co. , D. T. Watson, for Jos. Walton & Co. Miller &; McBride, for report. ACHESON, J. The Pennsylmnia act of April 20, 1858, (1 Purd. Dig. 126,) giving liens against domestic vessels navigating the rivers Allegheny, Monongahela, or Ohio, is awkwardly drawn, but it has always been construed by this court as embracmg stores and provisions furnished to any such vessel upon the credit thereof, when ordered by the owners, or by the master or other authorized agent. Uuder the general admiralty law, necessity, as respects supplies to a vessel, is a relative term, and is open to much latitude of construction. Ben. Adm. § 268. In the case of The Plymouth Rock, 13 Blatchf. 505, it w'as adjudged that a lien existed for food of various kinds supplied to a vessel engaged in making several trips each day between New York and Long Branch, although the food was dispensed to passengers from a restaurant on board the vessel. In the Pennsylvania act the word "necessity" does not occur, nor is there any express limitation as respects the nature of the supplies for which a lien is given. Where the owner himself gives or sanctions the order, there would seem to be no good reaSOll for questioning the existence of a lien because of the alleged absence of necessity, or the flupposed unfitness of the articles,. if the goods were furnished in good The Hoyle, 4 Biss. 234,238; The faith upon the credit of the vessel. James Guy, 1 Ben. 112. At least that view should prevail in such f!case as this, where the fund for distribution is the surplus remaining after the maritime liens are paid, and all the claimants come in only by virtue of the local statute. The Mayflower was an excursion boat plying in the vicinity of Pittsburgh, and there was, a lunch-counter on board the boat for the accommodation of the passengers. The claim of J. C. Buffum & Co., amounting to $67 .32, is for a class of goods designated in the testimony as "soft drinks," principally soda-water and syrup, furnished to the Mayflower in July and August, 1888; and the claim of W. H. Holmes & Son, amounting to $428.20, is for spirituous and malt liquors furnished to the boat in 1887 and 1888. It is shown that, with the knowledge and sanction of Capt. Lewis N. Clark, the master of the Mayflower, and one of her owners, all these goods were sold and delivered to the boat, upon· the credit of the boat, and were used on hersold to the passengers.. The claim of George S. Martin & Co., amount-
BOVARD tI. THE MAYFLOWER,
ing to $48, is for cider sold and delivered to the boat upon her credit, on the order of Capt. Clark, and in large part used on the boat by the excursionists and crew Now, these claims were disallowed upon the ground that the articles were not necessaries. But in view of what I have heretofore said, and under the authorities cited I am constrained to differ from the learned commissioner. The term" provisions" has been held to embrace wines and brandy. Mooney y. Evans, 6 Ired. Eq. 363. Under all the circumstances, I think the debts due these claimants were liens against the Mayflower within the fair meaning of the act. I am unable to concur with the commissioner in his disallowance of $1,178.88, part of the claim of Wilson, Bailey & Cl for provisions furnished to the Mayflower during the few months when Fred Pastre and W. r Clark ran the lunch-counter under an arrangement with the owners of the boat. It appears that those provisions were furnished under a general order of Capt. Lewis N. Clark. In particular instances, indeed, Pastre ordered some of the goods, but the claimants understood that he was the steward of the boat, and they gave no personal credit to him. In his report the learned commissioner refers to the evidence taken in the case of Marx v. The Mayflower, and treats it as evidence te, be considered in this case. But this is not allowable. The present lien claimants were not parties to that suit. It does not appear that the evidence taken therein was offered in this case, and, if it really was, it was only admissible to the extent of showing that Pastre gave contradictory testimony in the two cases. But, independently altogether of Pastre's testimony, it is here clearly shown that Wilson, Bailey & Co., in pursuance of a general order given by Capt. Clark, sold and delivered all said provisions to the Mayflower upon the credit of the boat, and that they were actually used on the boat. Nor is there sufficient evidence to show that these claimants had any knowledge of the alleged arrangement between the owners of the boat and Pastre and W. P. Clark. On the contrary, it satisfactorily appears that they had no knowledge on that subject. In this respect this case differs widely from that of Marx v. 1'he Mayflawer· Touching the claim of Joseph Walton & Co., for the cost of repairing their fuel-fiat, the action of the commissioner was entirely correct. The damages to the flat could only be allowed as a lien of the filth class. under the act. And now, June 1, the exceptions to the commissioner's report filed by J. C. Buffum & Co., W H. Holmes & Son,. and George S. Martin & Co., and the first and second exceptions filed by Wilson, Bailey & Co. are sustained, but all other exceptions are overruled; and the case is recommitted to the commissioner, with directions to correct his sGhedule of distribution in conformity with this opinion.
et al. v.
THE uZZIiE ANiD CARGO.
(Oircuit C01trt, E. D. Louisiana. May 21, 1889.)
1. SHIPPING-CAnmAGR OF GooDs-DEJ,AY. On October 2d libelants chartered a vessel to a cargo of lumber; the vessel to be at the port of loading by October t6.th. "exce'pting the acts of God in weather * * preven ting. " and to be loaded as fast as the vessel could receive 'l'hough ready to be moved in two or three days. tt e vessel was allowed to remain moored at her wharf until October 11th. and did not reach the port of loading until November 2d. She was detained for painting four or five days longer. though it appeared that the painting could have been eompleted in three days. Fourteen days were consumed in loading. during which time the master was absent. and the loading suspended. for four days. The loading could have been done in six days. and the lumber was ready on October 15th. An old pil(l'I; advised the master to clear a certain bar when partly loaded. and have the balance lightered down. offering him lighters. but the master refused. Vvhen the vessel arrived at the bar, it could have passed over. but the master was absent. and remained away for six days. during which time he was urged to depart promptly with the cargo. The vessel did not get across the bar until December 22d. having gone aground. Libelants had meanwhile urged lightering. saying that the cargo would be thrown on their hands unless promptly forwarded. and that they would seize the schooner for damages, and had offered the master a tug to haul the vessel over the bar. which he declined. The sale of the cargo was lost by the delay. Held, that the delay in loading and departure violated the charter,party, and entitled libelants to damages. 2. SAME-FREIGHT. Though the cbarter-party provided that the freight should be paid in advance on the vessel's being loaded, libelants could properly refuse to pay the freight because of the delay.
In Admiralty. Libel for damages. On appeal from district co'ut. Following is the opinion of the district court, delivered March 20,
"The fads in this ense, established by the testimony, are as follows: On · October 2, 1888, the master and owner of the schooner Lizzie entered into a · charter-party with Hoadley & Co., the libelants, to carry a cargo of lumber of about 90,000 feet, from Jay & Davis' saw-mill, on the Tchefuncta river, near Lake POD tchartrain, to Carthagena, United States of Columbia, South America, · the vessel to be at the port of by October 15, 1888, · excepting the acts of Godin weather, such as storms, calms, head winds. preventi ng.' Abont the time of the milking of the charter-party the schooner was at Morgan City. La., she haVing her center-board out of order and having it replaced. The charterparty also stipulated that' there should be the usnal qUick dispatch in loading, ·as fast as the vessel could receive.' l'hemaster went to Morgan City. 'fhe Center-board was replaced in two '01' three days, but the master allowed the · vessel to remain inactive, and to stay moored at the wharf there. until October 11th, when he started for Jay & Davis' mill. It took him six days to come fI'oIUMo:rganCity to the Rigolletes, where, by the r]uarantine, he w(,ls detained six days longer, for not having procui-ed a clean bill of health, and he did not arrive at Jay & Davis' mill until November 2d, which will be observed was seventeen days after the time fixed for the commencement of the loading by the terms of the charter-party. Instead of proceeding at once to load, the master left the schooner in charge of a single man, and came to New Orleans and directed the schooner to be put on the ways at Madisonville for painting, where she was detained another four or five days. 'fhe evidence